Tuesday, May 15, 2007

Salzberger on Judicial Activism in Israel

Judicial activism does not have an agreed definition. However, two major groups of definitions can be identified. One can be viewed as emerging from a jurisprudential vantage point, the other from a political science or theory of the state viewpoint. The jurisprudential gateway offers a non-relational definition of judicial activism – examining to which extent courts allow themselves leeway, freedom and discretion in interpreting existing norms (constitutional and legislative and indeed common law ones) and to what degree the courts allow themselves departures from previous rulings – the degree of changes in the law the source of which are the courts. The political science gateway adopts a relational definition to judicial activism, focusing on the role of courts in shaping collective decision-making in society relative to the role of the other branches of government – the legislature and the executive, and in relation to the public opinion.

The Israeli judiciary is portrayed by scholars as one of the most activist judiciaries in the world, according to both grand definitions of judicial activism. The aim of the paper is to describe the manifestations and forms of judicial activism in Israel in various fields of law - public law and private law - and to analyze the sources of this activism.

Among the sources of judicial activism in Israel on which the paper elaborate are: the system of government in Israel, the nature of the legal system as a mixed one, the court structure and especially the public law enforcement procedure, the process of judicial selection and the immense impact of the legal and judicial philosophy of the retired President of the Israeli Supreme Court – Aharon Barak.

Some of the examples of judicial activism which are dealt with in the paper are the courts involvement in matters of security, the war against terrorism and the Occupied Territories, judicial review of the legislation and administration without constitution empowerment , judicial made bill of rights and purposive and broad interpretation of private law legislation in the areas of contract, torts and unjust enrichment.

The paper concludes with analysis of the recent public debate and reaction to increasing judicial activism in Israel. The Israeli example seems to support the Madisonian argument that the right structure of government, and more specifically the right division of powers, can be sufficient to nourish a liberal democracy, even against a lack of an entrenched bill of rights. However, it argues that such division ought to be entrenched in a formal constitution. Otherwise, changing and difficult circumstances, combined with irrational political forces, can undermine a vital foundation on which the future success of the democratic process rests.